Responsabilidade penal na lei brasileira de lavagem de capitais : a ilegitimidade da atribuição da condição de garante aos agentes financeiros

Abstract

This master degree dissertation in Criminal Sciences, concentration developed within the research line area named Sistemas Jurídico-penais Contemporâneos (Legal and Criminal Contemporary Systems rules), at Pontifícia Universidade Católica do Rio Grande do Sul, basically focuses on the legitimacy of the criminal control over the conduct of agents (in this specific case, employees of financial institutions) that have the charge of collaborating with investigations relating to the Money Laundering crime. They must work through control systems which is related to the prevention of that crime within their working activity (named compliance duties). In Brazil, these duties had been imposed by Money Laundering Brazilian Federal Act (Federal Act no. 9.613/98). Thus, the search began for the contextualization of criminalization of Money Laundering, passing through the international rules that preceded the drafting of the Brazilian criminal law. This examination did not exclude the debate on the legal recognition of the need for protection of the socio-economic order. After that, we seek to determine how the Federal Act no. 9613/98 establishes the possibility of accusation of agents with compliance duties: the compliance officers. The willful omission mode has been chosen as a technique of criminal accusation. Then, this study examines the possibility of giving up the legal position of guarantor to those officers, considering the premises for the exercise of their function within a financial institution. Finally, we examine the legal implications of noncompliance, including as a reference, to the trial of Criminal Case no. 470 by the Brazilian Supreme Court. After all, we conclude that there is no legitimacy of criminal oversight thereof, especially if it is possible to use a non-criminal alternative, namely the administrative accountability.